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TMI Blog2015 (11) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... n appeal, the finding was confirmed with reference to Article 5(2)(j), for the Assessment Year 2002-2003; whereas, in respect of other two years, which are subject matter of other two appeals, the appeals of the assessee were allowed with reference to Article 5(2)(j) and this gave rise to appeals by the Revenue and by the assessee before the Tribunal. Before the Tribunal, we notice that the issue was sought to be raised by the Revenue and the following appears to be the reasoning of the Tribunal in declining to consider the question of Permanent Establishment with reference to Article 5(2) (a), (b) & (c) The Respondent, in fact, would submit that finding of this nature does not even give rise to a substantial question of law. That is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be treated as Business Income for taxation and can be not taxed as per DATA with USA? 3. It would appear that, against the judgment sought to be reviewed, SLPs were carried before the Hon ble Apex Court; but the same came to be withdrawn with liberty to file review petitions and it is, thereafter, that the present Review Petitions have been filed. 4. We had condoned the delay in filing the Applications for Review. We have heard the learned counsel for the appellant / review petitioner and the learned counsel for the respondent / assessee. 5. According to Mr. H.M. Bhatia, learned counsel for the Revenue, the question, which arose for consideration, was whether the assessee had a Permanent Establishment in India. This is an issue, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l question of law, which was formulated, insofar as it has not given its finding in regard to the availability of a Permanent Establishment in India on the basis of the provisions contained in Clauses (a) (b) (c) of Article 5(2) of the Agreement. 10. Article 5(2) provides that the term permanent establishment includes especially (a) a place of management; (b) a branch; and (c) an office. 11. From the perusal of the orders passed, we notice that the appeals were never admitted. The question of law was not formulated as such by the Court under Article 5(2) (a), (b) (c). It is true that the learned counsel for the appellant / review petitioner points out the sentence in the judgment as follows: The point in issue to be decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t), Mumbai-400051. It is submitted that the agreement had been concluded from this office and all business activities in pursuance of the agreement and the other agreement have been managed and controlled from this office. Therefore, this office constitutes PE in terms of Article 5(1), 5(2)(a) and 5(2)(c). On the other hand, the submission of the ld. counsel is that there is no fact on record to show that the business of the assessee was wholly or partly carried on from this office. Further, there is no evidence that the activities of the rig were managed from this office. There is also no evidence to show as to whether it was only an address given in the agreement for correspondence with Saipem SA or an office from which business activitie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s clear that it has to be shown that the business of the assessee had been wholly or partly carried on from this office. There is no evidence to show that any business was carried on except that the address has been mentioned in the agreement. That by itself does not lead to inference of PE under these provisions. Therefore the matter is decided accordingly. 13. The learned counsel for the respondent, in fact, would submit that finding of this nature does not even give rise to a substantial question of law. That is to say, according to him, the argument was raised, for the first time, before the Tribunal and there are no facts on record to back-up the plea raised under Article 5(2) (a), (b) (c). 14. We notice that, in fact, the Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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